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2012 DIGILAW 468 (HP)

Ruma Devi v. State Of Himachal Pradesh

2012-08-29

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT : Deepak Gupta, J. The petitioner by means of this writ petition has challenged the appointment of respondent No. 4 as Anganwari worker at Anganwari Centre Kulah, Tehsil Shillai, District Sirmaur. A preliminary objection has been raised by Sh. R.R. Rahi, appearing on behalf of respondent No. 4, that the petitioner did not avail the alternative remedy of appeal available to him and further that the writ petition is highly belated and deserves to be rejected on this short ground. 2. The interviews for the post of Anganwari worker were held in August, 2007 and respondent No. 4 was appointed in the same month as Anganwari worker. Her appointment was challenged by the present petitioner before respondent No. 3, which complaint was rejected on 19.07.2008. Thereafter, the petitioner filed an appeal which was rejected on 4.12.2008. Still not satisfied the petitioner filed CWP No. 2934 of 2008 which was heard alongwith other matters and disposed of on 17.5.2010. The case was remanded to the first authority to decide the same afresh. Thereafter the petitioner again filed a representation in the Court of the Deputy Commissioner, Sirmaur and the same was again rejected on 16.7.2011. Since the appointment of the respondent was prior to the amendment of the rules the petitioner had the alternative remedy of filing an appeal before the Divisional Commissioner within 15 days thereafter. The petitioner did not avail this opportunity but filed the present writ petition on 4th April, 2012. The main issue is whether the petition is barred by the principle of delay and laches and also can a party be allowed to urge that because the limitation of filing the appeal has expired the writ petition should be entertained. It is a well settled law that there is no limitation prescribed for filing a writ petition. A writ Court is not only a Court of law but also a Court of equity. By now the law is well established that in case there is undue delay or laches in filing the petition, the blameworthy conduct of the person in approaching the writ Court after great delay may disentitle him for grant of such discretionary relief. 3. A writ Court is not only a Court of law but also a Court of equity. By now the law is well established that in case there is undue delay or laches in filing the petition, the blameworthy conduct of the person in approaching the writ Court after great delay may disentitle him for grant of such discretionary relief. 3. In Lindsay Petroleum Company v. Prosper Armstrong, (1874) 5 PC 221, Sir Barnes Peacock in a very erudite manner laid down the following principles:-- Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy. 4. These principles have been followed by Indian Courts in all cases and have become a part of our writ jurisprudence. Reference in this behalf may be made to one decision in State of Maharashtra Vs. Digambar, (1995) 4 SCC 683 . 5. In State of Madhya Pradesh Vs. Bhailal Bhai and Others, AIR 1964 SC 1006 the Apex Court held as follows:-- 21. The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai's case, 1960 M.P.C. 304 out of which Civil Appeal No. 362 of 62 has arisen. On behalf of the respondents-petitioners in these appeals (C.A. Nos. The learned Judges appear to have failed to notice that the delay in these petitions was more than the delay in the petition made in Bhailal Bhai's case, 1960 M.P.C. 304 out of which Civil Appeal No. 362 of 62 has arisen. On behalf of the respondents-petitioners in these appeals (C.A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. We argued that assuming that the remedy of recovery by action in a civil Court stood barred on the date these applications were made that would be no reason to refuse relief Under Article 226 of the Constitution. Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are the opinion the orders for refund made by the High Court in these seven cases cannot be sustained. 6. If, on the other hand, as Mr. Andley seems to argue that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are the opinion the orders for refund made by the High Court in these seven cases cannot be sustained. 6. It would be apparent from the perusal of this judgment that the Apex Court held that if the statute or the limitation Act lays down a maximum period for taking action before the Civil Court then this must be construed to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court went on to hold that even if the delay is less than the period of limitation then also the writ Court can come to the conclusion that the delay is unreasonable. 7. In the present case not a word was stated as to what were the reasons for not filing the appeal or what were the reasons for not approaching this Court within time. A rejoinder has been filed in which the only explanation is given as follows:-- 5. The petitioner humbly states that she had been debarred from filing the second appeal since the time for filing the same which was fifteen days had expired as also to the fact that the Second Appellate Authority had no powers to enlarge the time of filing by condoning delay as specified in annexure P-1 para-19. The delay in filing the present Writ Petition has been, owing to the reason that the petitioner could not muster up proper legal advise as to the redressal of her grievances and where finally in the month of April, 2012 the present petition was filed. The said delay was neither intentional not willful but owing to the above stated reason. 8. There is no explanation why the petitioner could not file the appeal within 15 days which is the period of limitation prescribed. With regard to the present petition all that has been stated is that the petitioner could not muster up proper legal advice till the month of April, 2012. The petitioner was represented by Counsel throughout and had earlier also filed a writ petition and we fail to understand how she can be heard to urge that she could not muster up proper legal advice. 9. The petitioner was represented by Counsel throughout and had earlier also filed a writ petition and we fail to understand how she can be heard to urge that she could not muster up proper legal advice. 9. We are also of the view that in case an alternative remedy is provided the party approaching the writ Court without availing of this remedy must in all fairness give the reasons for not availing the alternative remedy. The principle of alternative remedy is a rule of prudence. It is not as if the writ Court is powerless to interfere but when an alternative remedy is available the writ Court normally will not exercise its jurisdiction unless such remedy has been availed of. A person who fails to avail the alternative remedy within the time prescribed stands on an even worst position. In a case where the petitioner informs the Court that for certain reasons he could not file an appeal and since the appellate authority has no right to condone the delay he may be left with no other efficacious remedy but to file a writ petition. However, in this case other than saying that the petitioner was debarred from filing an appeal because limitation has expired, no reason has been given as to why the appeal was not filed within limitation. We are, therefore, of the considered opinion that the preliminary objection raised by Shri R.R. Rahi, learned Counsel for respondent No. 4 is liable to be upheld and the petition is rejected as being highly belated.